Strahl v. Turner

• Decision Date: 10 March 1958
• Docket Number: No. 2,No. 45946,45946,2
• Citation: 310 S.W.2d 833,69 A.L.R.2d 646
• Parties: Sarah STRAHL, Lois Garland Axeman and Charles E. Garland, Appellants, v. Byrd C. TURNER, as an individual and as Executrix of Estate of Charles E. Turner, deceased, Respondent
• Court: Missouri Supreme Court

Page 833

310 S.W.2d 833

69 A.L.R.2d 646

Sarah STRAHL, Lois Garland Axeman and Charles E. Garland, Appellants, v. Byrd C. TURNER, as an individual and as Executrix of Estate of Charles E. Turner, deceased, Respondent.

No. 45946.

Supreme Court of Missouri, Division No. 2.

March 10, 1958.

Arkley W. Frieze, Vernie Crandall, Frieze & Crandall, Carthage, Ray E. Watson, Watson & Tudor, Joplin, for appellants.

Roy Coyne, Max Patten, Joplin, Frank R. Birkhead, Carthage, for respondent.

STOCKARD, Commissioner.

This is an appeal by the contestants from a judgment sustaining the will of Charles E. Turner in which he named his wife, who is respondent here, as the sole beneficiary. The amount in dispute is the difference between the value of the estate and what the respondent would receive as widow if there were no will, which is considerably in excess of $7,500. Jurisdiction of this appeal is in this court.

The Turner family operated a store for many years in Carthage, Missouri, dealing in furniture, carriages and harness. The business was dissolved in 1932. Thereafter, Charles E. Turner was 'more or less' retired and he engaged in making loans, mostly on real estate. His first wife died in 1941 after they had been married about forty years. Respondent formerly lived in Carthage, but she and her first husband went to California in 1912. Her husband died in 1939, and after some correspondence she and Mr. Turner were married in August 1944. The contested will was signed by Mr. Turner on October 9, 1951, when he was a few months less than 79 years old. He died on April 22, 1954, leaving no lineal descendants. The contestants are the direct descendants of Mr. Turner's deceased brother and sister.

The case was submitted to the jury on the issues of the testamentary capacity of Mr. Turner, the mental capacity of S. I. Barton to act as an attesting witness to the will, and undue influence on the part of respondent. The verdict of the jury was to sustain the will.

Appellants' first two contentions, which we shall consider together, are that instruction 1, the principal verdict directing instruction, was erroneous because it failed to require the jury to find that Lottie R. Barton was a competent witness to attest the will, and that the court also erred in refusing their requested instruction 19 submitting that issue to the jury. We need not set out instruction 1 because it is not challenged except on the basis that it failed to submit the issue sought to be submitted by instruction 19, which was as follows: 'The Court instructs the jury that if you find and believe from the evidence that at the time of the signing of the paper writing dated October 9, 1951, by Charles E. Turner, the witness Lottie R. Barton did not observe and judge of the mental capacity of the said Charles E. Turner to make a will and did not satisfy herself that he possessed the mental capacity to make a will, then the said Lottie R. Barton was not a competent witness to said paper writing and you will return a verdict that said paper writing is not the last will and testament of the said Charles E. Turner, deceased.'

It will be helpful to set out the circumstances surrounding the execution of the will. On October 9, 1951, at Mr. Turner's request, respondent called Mr. S. I. Barton, a practicing attorney in Carthage, and requested that he come to the Turner residence. Mr. Barton talked to Mr. Turner and obtained information concerning the desired contents of the will. He returned to his office and prepared the will and had it typed by his secretary. He then called his wife, Lottie R. Barton, and took her with him to the Turner residence. There is no question but that Mrs. Barton knew and understood that the purpose of her accompanying her husband to the Turner residence was to act as an attesting witness at the execution of a will. Mrs. Barton testified that after Mr. Turner and Mr. Barton 'passed a few words together'--'just like a few greetings,' they then 'got down to business,' and that by this she meant 'reading the will over.' To her best recollection Mr. Turner read the will aloud. Mr. Barton and Mr. Turner talked some about the will and 'about some other things, too,' but Mrs. Barton did not remember the conversation because she 'wasn't paying much attention' but was 'looking at a magazine,' and she 'thought they were attending to that business.' They 'seemed' to speak about the will and the things in it. The copy of the will had been typed when Mr. Barton took it to the Turner residence, but at the suggestion of Mr. Turner, the name of respondent, as it appeared in the will, was changed to include her middle initial 'C.' Mr. Barton told his wife 'to come and see him sign the will--watch him sign the will.' Mr. Turner then signed the will in the presence of both Mr. and Mrs. Barton, and they each then signed as witnesses in the presence of him and in the presence of each other. Mrs. Barton was asked this question: 'Now Mrs. Barton, from your observation, language, the conversation, the conduct and demeanor of Mr. Charles E. Turner on that occasion, will you tell the jury whether or not, in your opinion, at that time he was of sound mind?' Mrs. Barton was permitted to answer, over the objection of appellants, that, 'Yes, he was of sound mind from all of my observation.' Mrs. Barton was also permitted to testify over appellant's objection, that '(h)e [Turner] seemed to understand everything he had anything to say about.'

We should first note that the validity of the will in this case, as affected by the circumstances of its execution, is to be governed by the provisions of the probate code in existence prior to January 1, 1956. All statutory references are to RSMo 1949, V.A.M.S. Section 468.150 (now repealed but applicable to this case) and Section 474.320 (the presently existing provision) both provide that every will 'shall be attested by two or more competent witnesses subscribing their names to the will in the presence of the testator.' The present code contains a new provision, Section 474.330, which was not in effect prior to January 1, 1956, and which provides that '(a)ny person competent to be a witness generally in this state may act as attesting witness to a will.'

We should next note that whether the test of the competency of a person to be an attesting witness to a will be the same as or different from the test of competency of a person to be a witness in a judicial proceeding, the rules pertaining to who makes that determination are not the same. In the case of the competency of the witness to testify in a judicial proceeding the question is for the court. Ashley v. Williams, 365 Mo. 286, 281 S.W.2d 875; 97 C.J.S. Witnesses Sec. 119b. The competency of a witness to attest a will is a mixed question of law and fact. It is a question of law as to what constitutes a competent witness to attest a will, but the existence of the particular facts affecting competency is for the jury. 95 C.J.S. Wills Sec. 458. Therefore, assuming that there was substantial evidence to authorize the submission to the jury of the issue whether Mrs. Barton did not observe and judge the mental capacity of Mr. Turner to make a will, a close question under the evidence in this case, were the appellants entitled to have this issue submitted to the jury? In other words, if Mrs. Barton did not in fact 'observe and judge' the mental capacity of Mr. Turner and 'satisfy herself that he possessed the mental capacity to make a will' would she then, as a matter of law, not be a competent witness within the meaning of Section 468.150 (now repealed) to attest the will?

In the absence of a statute defining the term, a 'competent witness' for the purpose of attesting a will has been defined to be a person who is legally competent at the time of the execution of the will to testify in a court of justice to the facts which he attests by subscribing his name to the will. 57 Am.Jur., Wills, Sec. 308; 1 Page, Wills, (Lifetime ed.) Secs. 312, 313; In re Charles' Estate, 118 Neb. 634, 225 N.W. 869, 64 A.L.R. 1299; Salyers v. Salyers, 186 Va. 927, 45 S.E.2d 481; In re Mitchell's Estate, 41 Wash.2d 326, 249 P.2d 385. As stated in 94 C.J.S. Wills Sec. 185, '(g)enerally speaking, all persons are competent as witnesses to a will who are legally competent to be sworn and able to testify in a court of justice to the facts to which they attest in subscribing their names to the will. In other words, such persons are competent as witnesses to a will as are not legally disqualified to testify in a court of justice, as by reason of mental incapacity, interest, the commission or conviction of a crime, want of religious belief, or other causes excluding them from testifying generally, or rendering them incompetent in respect of particular subject matter or in the particular suit.'

There is no contention that at the time Mrs. Barton acted as an attesting witness she was not legally competent to be sworn and to testify in a court of justice to the facts that she observed and to the things that she did. Appellants admit in their brief that Mrs. Barton was 'competent to be a witness' to the will, but they contend that she was not in fact a competent witness to the will because she did not observe all that she could have observed, and it is their contention that this circumstance would authorize a finding by the jury that she did not in her own mind satisfy herself that the testator was mentally competent to make a will, or in other words, that he was a person 'of sound mind.'

The fallacy of appellants' contention is that the matters in which appellants claim Mrs. Barton was deficient in acting in the capacity of an attesting witness do not affect her competency to act as an attesting witness to the will, but bear only on her credibility as a witness in the suit to contest the will. As stated in 1 Page, Wills, (Lifetime ed.) Sec. 312, '(t)he fact that a subscribing witness has been...